Where questions are certified up to this Court in consequence of
a division in opinion between the judges of the circuit court, they
must be questions of law, and not questions of fact; not such as
involve or imply conclusions or judgment by the judges upon the
weight or effect of testimony or facts adduced in the cause.
The questions must also be distinctly and particularly stated
with reference to that part of the case upon which such questions
shall have arise.
The points stated must be single, and must not bring up the
whole case for decision.
The case was before the Court at the preceding term, and is
reported in 58 U. S. 17
The certificate of division commenced as follows, namely:
"Certificate of Division of Opinion"
"CIRCUIT COURT OF THE U.S."
"Southern Dist. of Ala.
"A. DENNISTOUN AND CO."
"JAMES REID AND CO."
"Upon the trial of this cause in the circuit court aforesaid,
the defendant, among other defenses to the case of the plaintiffs,
insisted that the plaintiffs had surrendered to one Byrne, a bill
of lading for ten hundred and fifty-eight bales of cotton on
Page 59 U. S. 566
whereby the said Byrne was enabled to
dispose of the said cotton and apply the proceeds otherwise than
for the payment of the bill upon which this suit was brought,
against the rights and interests of the said defendant, whereby he
was injured to the whole amount of the bill. And upon the point of
this defense the depositions of Joseph Bramwell, Robert Barrett,
Robert Winthrop, A. E. Byrne, Orlando Jones, Andrew Stewart,
Charles Livingston, Moses Joynson, T. D. Anderson, and Wm.
Moreland, which are hereunto attached, were read to the jury and
formed the testimony relied on by the parties in reference to such
defense. And upon the instructions proper to be given to the jury
upon the said defense, the following questions arose, and upon
which the members of the court were opposed and divided in
Then followed the questions as they are stated in the opinion of
MR. JUSTICE DANIEL delivered the opinion of the Court.
The evidence before the circuit court on which the division in
opinion arose was of the following character:
The defendant, on the 9th day of September, 1850, at Mobile, in
the names of James Reid and Co., of which firm the defendant was a
member, drew a bill on Henry Goa Booth, at Liverpool, for the sum
of forty-four hundred and seventeen pounds fourteen shillings and
eleven pence sterling, payable at sixty days sight, to the order of
the drawers in London, on account of 1,058 bales of cotton, shipped
by the drawers to the drawee by the ship Windsor
This bill was endorsed by the defendant, by the name and style
of his firm, to the plaintiffs, and, after acceptance, having been
returned protested for nonpayment, an action of assumpsit was
brought for the amount of the bill and charges by the endorsees
against the defendant as drawer.
Upon the trial before the circuit court, there were introduced
and read the testimony of sundry witnesses, examined on the part
both of the plaintiffs and the defendant.
The object of the plaintiffs was to sustain their right of
recovery upon the bill by showing that this right had not been lost
or impaired by any irregularity or delinquency of the plaintiffs as
endorsees and holders of the bill for value.
Page 59 U. S. 567
By the evidence adduced by the defendant it was designed to show
that, previously to the purchase of the 1,058 bales of cotton and
as a part of the agreement on which the purchase was to be made,
the defendant, or the person or persons by whom the funds for that
purchase should be advanced, should hold the bill of lading of the
cargo as security for such advances; that this agreement was
adopted by the plaintiffs, who required and received the bill of
lading as a precedent condition to their purchase of the bills
drawn on Booth by the defendant; that the bill of lading thus
received as a security was transmitted by the plaintiffs to a
branch of their firm in Liverpool, and by the Liverpool branch,
with the knowledge and in violation of that agreement, was
surrendered to one Byrne, a creditor of Boothe, and thus diverted
from the purposes it was intended to secure.
Upon the instructions prayed from the court to the jury, the
court were divided in opinion upon the following questions:
1. Whether the firm of Dennistoun, Wood, and Co., of New York,
or the plaintiffs, were bound to hold the said bill of lading for
the shipment on the said Windsor Castle as a security for the bill
of exchange described in the declaration, and whether any amount of
loss arising to the said defendant from their failure to hold the
said bill for the purpose of securing the proceeds of the cotton
specified therein, for the payment of the bill of exchange
described in the declaration, can be used as a defense against the
bill, or any part thereof.
2. Whether the said Dennistoun and Co. were required to hold the
said bill of lading as a security for any bill of exchange drawn by
the defendant or his agents upon the said shipment of cotton, other
than those to which the same was attached, or of which they, the
said plaintiffs, had specific and direct notice at the time of the
settlement with Byrne in the manner stated in the depositions, and
whether notice to Dennistoun, Wood, and Co., in New York, was
operative as a notice to the plaintiffs in Liverpool, though no
notice was received by the house in Liverpool of such outstanding
bill before said settlement.
3. Whether, if the plaintiffs surrendered the said bill of
lading to the said Byrne under a promise from him that the proceeds
of the cotton should be applied to the payment of bills that might
come forward and that this bill should subsequently come forward,
and that the plaintiffs have failed to sue said Byrne or to take
any other legal proceeding against him, and that the said Byrne has
the proceeds of the cotton more than sufficient to pay the bill,
these facts or any other facts in connection therewith that are
contained in the said testimony, offer any defense against the case
of the plaintiffs.
Page 59 U. S. 568
4. Whether any view of the evidence introduced upon the said
trial and hereto attached, would warrant the jury in finding for
the defendant, upon this point of the defense to the case of the
5. And the further question arose whether the statute of Alabama
regulating the damages upon bills of exchange like the present,
returned under protest, regulates the rate of damage in this
We think that our jurisdiction of the questions certified on the
record of this cause is forbidden by previous decisions of this
Court bearing upon those questions considered separately as well as
upon the case as presented by them in an aggregate point of
In the interpretations by this Court of the Act of Congress of
April 29, 1802, authorizing divisions of opinion at circuit to be
certified, the following requisites have been prescribed as
indispensable to the jurisdiction of this Court over questions upon
which the judges shall have been opposed in opinion.
1. They must be questions of law, and not questions of fact --
not such as involve or imply conclusions or judgment by the judges
upon the weight or effect of testimony or facts adduced in the
cause. Vide 49 U. S.
8 How. 258. And the question or questions upon which
the judges were opposed in opinion must be distinctly and
particularly stated with reference to that part of the case upon
which such question or questions shall have arise. Vide
46 U. S.
5 How. 208. It is said by THE CHIEF JUSTICE in
delivering the opinion of the Court in this case, "we are not
authorized to decide in such cases unless the particular point upon
which the judges differed is stated;" again he says:
"The difference of opinion is indeed stated to have been on the
point whether the demurrer should be sustained. But such a question
can hardly be called a point in the case within the meaning of the
act of Congress, for it does not show whether the difficulty arose
upon the construction of the act of Congress on which the
indictment was founded, or upon the form of proceeding adopted to
inflict the punishment, or upon any supposed defect in the counts
in the indictment. On the contrary, the whole case is ordered to be
certified upon the indictment, demurrer, and joinder, leaving this
Court to look into the record to determine for itself whether any
sufficient objection can be made in bar of the prosecution."
2. The points stated must be single, and must not bring up the
whole case for decision.
In the establishment of this position, the rulings of this Court
have been reiterated and most explicit.
Beginning with the case of United States v.
Page 59 U. S. 569
9 Pet. 257, it is in that case declared by the late Chief
"The language of the 6th section of the act to amend the
judicial system of the United States shows conclusively that
Congress intended to provide for a division of opinion on single
points which frequently occur in the trial of a cause, not to
enable a circuit court to transfer an entire cause into this Court
before a final judgment -- a construction which would authorize
such a transfer would counteract the policy which forbids writs of
error or appeals until the judgment or decree be final."
To the same effect, and enunciated in language equally if not
even more explicit, will be found the decisions of Adams
& Co. v. Jones,
12 Pet. 207; of
White v. Turk,
12 Pet. 238; of Nesmith v.
6 How. 41; of Webster v.
10 How. 54.
Upon the trial in the circuit court, the examination of
witnesses was introduced and relied on both by plaintiffs and
defendant to show the nature of the agreement upon which the cargo
of The Windsor Castle
was purchased and upon which the
plaintiffs consented to purchase and did purchase the bills drawn
by the defendant upon Booth, the character of the security
proffered and said to have been accepted in the bill of lading for
the indemnity of the plaintiffs in purchasing the bills drawn upon
Booth, and the obligation of the same plaintiffs not to surrender
that security nor to use it to the detriment of the defendant. The
case was not placed before the judges upon any general or settled
principle of the law merchant, nor was their opposition in opinion
founded upon a case moulded and governed simply by that law, but
they have divided upon a case which was or might have been affected
by facts heard in evidence, the influence of which facts, as
controlling the acts and obligations of the parties, fell
peculiarly and properly within the province of the jury.
Again, we do not think that the certificate of the judges of the
circuit court conforms to the settled interpretation of the act of
Congress as expounded by the cases cited in presenting to this
Court any single or specific question of law arising in the
progress of the cause, but that it refers to this Court the entire
law of the case as it might arise upon all the facts supposed by
the court, and which have not been found by the jury. We are
therefore of the opinion that this Court cannot take jurisdiction
of this case as certified from the circuit court, but that it
Remanded to that court to be proceeded in according to